The role of student-edited law reviews and whether or not they have a future has been the subject of controversy for many decades.

When Justice Michael Kirby published a defence of law reviews a few years ago, he said: ‘To justify a new journal, the publisher must offer something that current journals do not provide. As well, law schools, proliferating in such number, need to differentiate their products.’

From 1935 when Melbourne University Law School commenced to publish Res Judicatae, which became the Melbourne University Law Review in 1957, until today when there are almost 30 university law reviews, the Federal Law Review is the only one that identified a specialist field from the outset. In 1964 it became the seventh university law review following Melbourne, Queensland, Western Australia, Sydney, Tasmania and Adelaide. Sir Kenneth Bailey, then Solicitor-General of the Commonwealth in a Foreword to the first issue of the review emphasised the distinctive contribution that the focus of attention on federal matters would make to Australian legal literature.

There has been renewed interest in the constitutional dimensions of choice of law. This interest was reignited by the High Court’s decision in John Pfeiffer Pty Ltd v Rogerson, where the Court appealed to ‘constitutional factors’ as guiding the selection of the lex loci delicti as a common law choice of law rule in intra-national tort cases. While the central importance of the overarching constitutional framework to intra-national choice of law questions may be accepted, the High Court struggled to identify with precision the relevance of constitutional provisions and implications for the choice of law inquiry. In particular, it failed to respond adequately to concerns expressed in earlier majority judgments about the continued capacity of State legislatures to direct their courts as to the legal standards to be applied in a case involving out-of-state elements. Because of the fact pattern that arose in Pfeiffer, the High Court was able to avoid the more difficult questions that arise in intra-national choice of law cases, particularly the question of which legal standards apply when there is an ‘inconsistency’ between two or more State legislative provisions.

The early cases on the Australian territories approached them not as constituent parts of the Commonwealth, but as subordinate to it, with the result that the territories power, s 122 of the Constitution, was held to be unaffected by other constitutional provisions. Most strikingly, Ch III of the Constitution was wholly inapplicable to the courts and judicial proceedings of the territories. Even the important doctrine that Ch III is exhaustive of the judicial power of the Commonwealth did not restrict the Parliament’s power to confer appellate jurisdiction on the High Court under s 122.

In more recent cases, majorities of the High Court have adopted a more cohesive approach which considers s 122 in the context of the Commonwealth Constitution as a whole. The view that the territories are disjoined from the Commonwealth is no longer tenable, if it ever was.

This article examines the conduct of empirical legal research and its relationship to law reform. Through a detailed analysis of the largest survey of State and federal judges conducted in Australia it explores some of the limits to empirical investigation, particularly the tendency to rely primarily on judicial perspectives as the basis for law reform. Focusing upon empirical legal research on the subject of expert evidence the article initially examines research methodologies, then extends the analysis to consider the correspondence between the collection, interpretation and presentation of empirical data and recommendations for legal change. This involves an assessment of a broad range of methodological and theoretical issues with implications extending well beyond the particular survey. Last, the empirical research on expert evidence will be evaluated using the principal reform proposal suggested by the investigators. This exercise will provide an indication of methodological problems which beset the survey and demonstrate practical limitations with the particular approach to expertise.

The last two decades have witnessed a colossal struggle between the government and the courts over judicial supervision of executive decisions with respect to migration. The struggle culminated in February 2003 with the High Court decision in Plaintiff S157/2002 v Commonwealth concerning the privative clause in the Migration Act 1958 (Cth) (‘the Act’). While upholding its constitutional validity, the Court rendered the privative clause effectively redundant by ruling it incapable of protecting decisions involving jurisdictional error.